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Friday, October 06, 2023

This is what ignoring a court order looks like (Maybe) (Amendment)


People often accuse government officials of "ignoring" or "disregarding" court orders. Most use the term inaccurately. They apply it to cases in which governments continue to enforce zombie laws contrary to Supreme Court precedent prior to a court ordering them to stop that--the Southern Manifesto or Cooper v. Aaron. Or they apply it to edge cases, such as the recently resolved dispute in Allen v. Milligan over Alabama's congressional maps--Alabama read the non-explicit court order narrowly, attempted to get away with not drawing a second majority-Black district, lost when the new map returned to district court and SCOTUS refused to stay the order, and acquiesced to the court-drawn map (with the second district).

By contrast, a real example of ignoring a court order appears to be playing out in Florida. The district court found Florida law and regs prohibiting Medicaid coverage for gender-affirming care violates the 14th Amendment, ACA, and the Medicaid Act and enjoined enforcement. Florida appealed, but neither the district court nor Eleventh Circuit has stayed the injunction. Nevertheless, according to plaintiffs' motion to enforce, Florida continues to enforce the reg and to deny coverage. Florida has good reason to believe it will prevail on appear and the district court's judgment is not long for this world--if Florida can ban gender-affirming care, as the Eleventh Circuit held, it is hard to imagine the court saying Florida cannot refuse to pay for that care. But it does not matter. A district court judgment binds the defendants as to the plaintiffs unless it is stayed or reversed on appeal. The departmentalist power to continue enforcing the law as to the plaintiffs based on disagreement, belief a higher court will reverse, or to try to set-up reversal has disappeared. Florida can appeal the judgment, as it has. But until the judgment is stayed or reversed, Florida must comply. And its failure or refusal to do so can warrant sanctions.

Note, by the way, how much leeway the plaintiffs expect the court to give. They do not request sanctions. In essence, they want the court to reaffirm or clarify its judgment (which is perfectly clear) and to remind Florida it may not enforce the law. Sanctions are several steps away.

Amendment: Maybe. The injunction (properly) prohibited enforcement of the law as to the four plaintiffs. The motion seems to challenge the state's blanket efforts to continue enforcing its regs, such as public statements of intent to continue enforcement, recoupment efforts, and cease-and-desist letters to insurance carriers. To the extent those blanket efforts cause enforcement against the four plaintiffs, this motion gets it right--the state fails to distinguish those the injunction protects from enforcement from others who remain unprotected. But the language in the motion is much broader--it seems to argue that, given the court's finding that the reg is invalid, the injunction bars all enforcement against all people. I take back--or at least soften--everything I said above.

Posted by Howard Wasserman on October 6, 2023 at 10:27 AM in Howard Wasserman, Judicial Process | Permalink


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